The Software Empire Strikes Back

Back in 2008, a ruling was made that made a bit of headway in the fight that closed source software “owners” have been fighting for years. It upheld a claim of a holder of several copies of CAD software that had been previously registered could sell them, because he had “purchased” them. The court was actually saying he had the right to pass along the software through a little known, and now it seems, little understood, concept called doctrine of first sale.

Now Autodesk, the company that maintained that it was not legal to resell its products, has won in a higher court. That’s bad news for all of us, as it once again restores the power of the software companies.

If you’ve ever read the EULA on any major piece of commercial software, you know your rights are in the range from minimal to zero. The abuse of the customer, and the customer’s lack of recourse for so many things are exactly why so many people justify piracy, or if not justify, at least understand it (I’m in that second camp).

An anonymous reader wrote to tell us a federal appeals court ruled today that the first sale doctrine is “unavailable to those who are only licensed to use their copies of copyrighted works.” This reverses a 2008 decision from the Autodesk case, in which a man was selling used copies of AutoCAD that were not currently installed on any computers. Autodesk objected to the sales because their license agreement did not permit the transfer of ownership. Today’s ruling (PDF) upholds Autodesk’s claims: “We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense. “

The only thing I have to say is that I wonder how much the court was paid to render that decision.